AG2001/3546, Transcript of Proceedings [2001] AIRCTrans 1490 (13 July 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2001/3546

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 270LK of the Act
by Thakral Operations Pty Ltd for
certification of the Oasis Security Guards
Certified Agreement 2001

BRISBANE

10.06 AM, THURSDAY, 21 JUNE 2001

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter?

PN2

MR B. PROVAN: May it please the Commission, I am from Livingstones Australia. I appear as agent for and on behalf of Thakral Operations Pty Limited, the applicant in this matter.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Provan.

PN4

MR PROVAN: Senior Deputy President, this application before the Commission today seeks certification of an enterprise agreement reached between the applicant and the employees of the company, namely, Thakral Operations Pty Limited, who operate the Oasis Shopping Centre on the Queensland Gold Coast. It is the parties' intention for this agreement to operate for a tow-year term from 1 September 2000, and on this basis, of course, subject to this Commission's approval of the certified agreement, the company will be paying a back-pay to all relevant employees to that date.

PN5

Senior Deputy President, the agreement provides for wage increases during its life that will reflect all general wage increases determined by the Queensland Industrial Relations Commission from time to time and this is in order to align the Thakral employees' wage increases with equivalent fellow employees in this same industry. The agreement was approved unanimously by the relevant employees, and if it pleases the Commission I am able to offer up the returning officer's report and ballot forms which substantiate this result.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, I'll mark this bundle of documents exhibit Oasis 1.

EXHIBIT #OASIS 1 BUNDLE OF DOCUMENTS CONTAINING RETURNING OFFICER'S REPORT AND BALLOT FORMS

PN7

MR PROVAN: We are also able to offer up a wage rate appendix and a comparison matrix, if the Commission pleases. We have forwarded those through to your associate, but we're happy to hand those up again. The significance of the wage rate appendix, which we would ask this Commission certify as an adjunct to the enterprise agreement, is that as a result of the Queensland Industrial Relations Commission decision to increase the casual loading from 19 per cent to 21 per cent, effective 14 May, this agreement was already out with the employees for the 14 day consideration period and it was not recalled to adjust the hourly rates upwards for the casual employees, so on that basis we have amended the casual hourly rate from 16.50 an hour to 16.80 per hour. The adjustment, effective 14 May, does have no effect on the full-time rate, but we would ask the Commission certify this appendix as an attachment to the EBA to increase that casual rate.

PN8

We would rely upon our submissions in this hearing and upon the statutory declarations previously provided to the Commission to respectfully submit that the agreement before the Commission satisfies the requirements of Section 170LK of the Act and does not contravene Section 170LU of the Act. We, therefore, respectfully submit that there is no impediment on the Commission approving the agreement with an operative date of today's date, if it pleases the Commission.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. Now, all of the employees, at the time of lodging this agreement, were casuals?

PN10

MR PROVAN: My understanding is they were.

PN11

THE SENIOR DEPUTY PRESIDENT: Do you know if that still remains the case?

PN12

MR PROVAN: My understanding is there's a full-time employee at the moment, but there was a question as to the salary that was being paid to that employee as to whether she would be covered by this agreement. My understanding is that her salary is far in excess of the full-time rate of this agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: Right. Do you have a copy of the notice that was provided to the employees?

PN14

MR PROVAN: I should have, Senior Deputy President.

PN15

THE SENIOR DEPUTY PRESIDENT: Whilst you're trying to locate that I will mark these two documents that you've provided to me. One is the wage rate appendix to the EBA and the other is a document entitled, Comparison matrix, miscellaneous workers award, State v Oasis Security Guards EBA and I'll mark those together and they will become Oasis 2.

EXHIBIT #OASIS 2 WAGE RATE APPENDIX TO THE EBA AND COMPARISON MATRIX MISCELLANEOUS WORKERS AWARD, STATE V OASIS SECURITY GUARDS EBA

PN16

MR PROVAN: I apologise, Senior Deputy President, I appear not to have that document in my file, but it certainly would be available to put to the Commission. The hard copy appears not to be here, that's all.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes. Well, it's necessary for me to be satisfied that that statutory requirement was met and that the letter contained within it the appropriate information for employees, so if that could be provided to me as soon as possible.

PN18

MR PROVAN: I can do that this morning.

PN19

THE SENIOR DEPUTY PRESIDENT: Now, why is it said that these employees are award free?

PN20

MR PROVAN: I'm not sure where that was said, Senior Deputy President.

PN21

THE SENIOR DEPUTY PRESIDENT: It's in the agreement. I note from Clause 1.3.1 it is acknowledged that the employees covered by this agreement are not covered by an award.

PN22

MR PROVAN: I suspect that's an oversight actually, Senior Deputy President, on the basis that this agreement reflected the monorail attendants agreement which was, in fact, certified yesterday in the Queensland Industrial Commission and prior to 4 October last year the monorail attendants had been "award free" until the Queensland Commission nominated the Miscellaneous Workers Award as the appropriate coverage, and I apologise, but it appears that that's transferred into this agreement.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. The monorail attendants agreement certified yesterday in the State Commission, does that concern security officers?

PN24

MR PROVAN: No, it's a separate agreement.

PN25

THE SENIOR DEPUTY PRESIDENT: People operating a monorail. All right.

PN26

MR PROVAN: Yes. And prior to that there was no clear classification under an award.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Well, that's a matter of some significance and I'll return to that. It is then said that the Miscellaneous Workers Award State has been used for the purposes of the no disadvantage test. Now, I understand from your submission that Thakral Operations operates the Oasis shopping centre. What does that mean, it operates the Oasis shopping centre?

PN28

MR PROVAN: They are the company that owns the shopping centre, organises the leases with the tenants - - -

PN29

THE SENIOR DEPUTY PRESIDENT: Yes.

PN30

MR PROVAN: - - - is responsible for security in the building.

PN31

THE SENIOR DEPUTY PRESIDENT: I see.

PN32

MR PROVAN: They organise the car-parking and security of car-parks; organise the contractors to clean - clean the property and remove refuse; and if I suspect a tenant had a difficulty of some nature they would go to the Thakral Centre Management Office on the 3rd floor and be heard.

PN33

THE SENIOR DEPUTY PRESIDENT: I see. So to use my words, they are direct employees of Thakral, are they?

PN34

MR PROVAN: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: Are there any security officers providing services in and about the shopping centre who are not employees of Thackral and are employees of some other entity? Or are all security officers in and about the shopping centre direct employees of Thackral?

PN36

MR PROVAN: There would be some security officers providing security that would be employees of other organisations, in the sense that the shopping centre is adjacent to a mall in which there is I know at least a McDonald's franchise, and other outlets who, I understand, would engage their own security.

PN37

THE SENIOR DEPUTY PRESIDENT: Who may be likely to be under the security industry contractors' award?

PN38

MR PROVAN: Those type of employees may well be.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, I see. Yes. Now, as I read the agreement, the hourly rate that is to be paid is to be $16.80 per hour? That is the casual hourly rate?

PN40

MR PROVAN: Yes.

PN41

THE SENIOR DEPUTY PRESIDENT: And that is to be paid for all work performed except on public holidays?

PN42

MR PROVAN: Yes. The rates are inflated against the award casual rate based on the six week rotating roster that the company works to, and it absorbs the evening penalties and the weekend penalties, apart from public holidays. So even on a Monday to Friday day shift someone would be paid that $16.80 rate even though that period would under the award attract a $14.00 hourly rate.

PN43

THE SENIOR DEPUTY PRESIDENT: Does the shopping centre open seven days a week?

PN44

MR PROVAN: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: Is there late night shopping in this state that impacts on the retailers or outlets at the shopping centre?

PN46

MR PROVAN: I suspect the Gold Coast would be the same as Brisbane in the sense that Thursday night would be the late night - late night shopping, and I suspect Friday evening the centre is so large that it is has a variety of outlets - - -

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. Does it have things like cinemas, and alcohol outlets?

PN48

MR PROVAN: It does not have cinemas, but it has alcohol outlets.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes.

PN50

MR PROVAN: And in the sense that I suspect the alcohol outlets engage their own security separate from Thackral, that's my understanding.

PN51

THE SENIOR DEPUTY PRESIDENT: And I take it there is supermarkets, or - - -

PN52

MR PROVAN: Yes. There is one large supermarket but no large department stores.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes.

PN54

MR PROVAN: It is really a cluster of small boutique style operations.

PN55

THE SENIOR DEPUTY PRESIDENT: All right. I notice that although this is an agreement entered into directly with the employees and presented for certification under Section 170LK of the Act, that it has a right of entry clause in it and a tutor training leave clause in it, and it refers to the union, which is not referred to elsewhere nor defined, paragraph 6.7 and 7.1; and 7.4 gives union delegates certain rights. And the union, of course, it being a Section 170 (l)(k) agreement, isn't party to it.

PN56

MR PROVAN: I must confess the agreement copy I have that was stamped doesn't have those clauses, Senior Deputy President.

PN57

THE SENIOR DEPUTY PRESIDENT: Is that right.

PN58

MR PROVAN: However - - -

PN59

THE SENIOR DEPUTY PRESIDENT: Well, the one I have stamped 12 June has those clauses appearing at clauses 6.7, 7.1 and 7.4. Is there a later version, is there?

PN60

MR PROVAN: It appears there would have been. But I do have a copy printed 6 April on the top - - -

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, so do I.

PN62

MR PROVAN: - - - but stamped the 12 June as well.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, so is mine.

PN64

MR PROVAN: I suspect that they were clauses that were in the monorail agreement which appear to have carried over at least in your copy. On the basis, though, that they are clauses in the monorail agreement, which was an agreement certified with the Liquor Hospitality Miscellaneous Workers Union, I suspect that the company would have no difficulty offering equivalent conditions to the security guards.

PN65

THE SENIOR DEPUTY PRESIDENT: I might have difficulty though. It is not a section 170LK agreement. It is an agreement entered into that regulates certain entitlements the union will have, and accordingly the union should have an opportunity to be heard, I would have thought, putting to one side what may or may not be their ability to intervene.

PN66

The matters that I have raised thus far will result in it being unlikely I will certify this today, and likely that I will require it to be re-visited and put back again for a vote, and I haven't even reached my concerns about whether $16.80 is adequate compensation for Saturday and Sunday work. But now I know that the Miscellaneous Workers award is the award, rather than it being award free, I will be able to have someone undertake some calculations. I would like to have the rosters that are worked in order to undertake those calculations. May I have the rosters that have been worked in the month of - the two months immediately prior to filing of the application?

PN67

MR PROVAN: Certainly, so April - - -

PN68

THE SENIOR DEPUTY PRESIDENT: All of April, and all of May. I won't put a time limit on you for doing that, but if that can be provided to me as soon as possible. You will need to consider what you wish to do in the interim, but it might be useful for you to know whether or not in addition to the concerns that I have in relation to the matters I have raised I will also have concerns about $16.80 across-the-board rate. I put to one side any overtime that might be attracted to that.

PN69

My initial inquiry will be into whether that is adequate for hours worked in what might be traditionally called night-shift hours on Saturdays or Sundays. When I receive those rosters we will undertake some calculations and let you know, not in a formal but in an informal sense, that if you were to present another agreement with $16.80 in it, whether I would be likely to find that it meets the no disadvantage test. It is probably useful to know that before you take too many other steps.

PN70

MR PROVAN: Thank you.

PN71

THE SENIOR DEPUTY PRESIDENT: I don't intend to do anything further this morning, and we just will await the provision of those rosters to my chambers in Sydney. Commission now adjourns.

PN72

MR PROVAN: Thank you, Senior Deputy President.

ADJOURNED INDEFINITELY [10.22am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #OASIS 1 BUNDLE OF DOCUMENTS CONTAINING RETURNING OFFICER'S REPORT AND BALLOT FORMS PN7
EXHIBIT #OASIS 2 WAGE RATE APPENDIX TO THE EBA AND COMPARISON MATRIX MISCELLANEOUS WORKERS AWARD, STATE V OASIS SECURITY GUARDS EBA PN16